38 F. 736 -

38 F1d 736

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Case Text

7M

FEDERAL REPORTER,

vol. 38.

tain, you' have the right to resort to that experience in determining what will be the probable effect of the publications involved in this case, providing you think such comparison, or a reference to such experience, will be of any service, and will aid you in reaching a correct conclusion. I think this is all that is necessary to be said in this ease. I ask you to consider the case fairly, and decide the issue that I have defined as to the character of these publications, according to your honest judgment of the effect that such publications will have on the minds of those that read them. The jury impaneled in this cause, after retiring, returned into court, and submitted to the court the following question, to-wit: "If the jury find any portion of the book, pamphlet, or circular obscene, lewd, etc., would such finding be sufficient p;rounds for them to condemn the whole book, pamphlet. or circular? W. S. Foreman." Thereupon the court further instructed the said jury as follows, to-wit: "If the effect of the pamphlet and papers as a whole would be to deprave and corrupt the minds of those into whose hands they might come whose minds are open to such influences, or to excite lustful or sensual desires, then the pamphlets and circulars should be found to be obscene and lewd, whether such effect on the minds of readers is produced by single passages or portions of the pamphlets and circulars, or by many . passages or portions." The jury returned a verdict of guilty on all counts.

Defendant was engaged'in procuring and furnishing to anyone who would patronize him liquors in quantities less than five gallons. He testified that he received orders. requiring the person ordering to pay 10 cents down for a bottle of beer, and when the beer was delivered. an extra 15 cents, as remu. neration for· going to a neighboring state to procure it. But the evidence failed to show that defendant bought specific quantities of liquor to corre· spond with special orders, but showed that he bought beer by the case. and raid for it and sold it to anyone desiring it. I:1eld,. that defendant was a dealer," within Rev. St. U. S. § 8242, requiring persona carrying on the business of retail liquor dealer to pay a special tax.

Indictment for Carrying on the Business of a. Retail Liquor Dealer, without payment of the tax. On motion for new trial. T. P. lffttrphy, U: S. Dist. Atty. Isaac Pendleton, for defendant.

SRmAS, J. The indictment in this cause chargoo the defendant with a violation of section 3242 of thel Revised Statutes l in tha.t he was carryoti the business of a retail liquor dealer at Sioux City, Iowa, without

UNIrED STATES V. ALLEN.

731

having paid the special tax imposed upon such dealers; by the statutes of the United States. The evidence adduced on the trial showed that the defendant had undertaken the business of procuring and furnishing to anyone who would patronize himliquors, spirituous and malt, in quantities lesllthan five gallons. He had a place of business, in which was found by the state officers, having a search-warrant issued under the prohibitory law, two unbroken cases of beer, containing 24 bottles each,25 bottles of beer not in a case, a number of glass whisky flasks which had not been used, one or two filled with whisky, and a number of empty beer bottles and .beer kegs. The defendant, when on the stand as a witness in his own behalf, testified that he kept a book in which he entered the names of all persons who employed him to procure beer or liquor for them. He further testified that if anyone wished to employ his services for instance, a bottle of beer, he required him to pay down 10.cents, and, when the beer was delivered, to pay a further sum of 15 cents at; remuneration for his trouble in going to Covington, Neb., and getting the beer. .The evidence further showed that when a number of orders had been received the defendant would go to Covington, procure the liquor or beer, take it to his place or room in Sioux City, and then deliver it when called for. The evidence, however, failed to show that the defendant bought specific quantities of beer or liquor to correspond with special orders previously given to him, but, on the contrary, it would seem that defendant bought the beer by the case, paying therefor $2.50 per case, and then delivering it to"customers at the rate of 25 cents per bottle. The claim of defendant,was that he was acting merely as an express agency, having organized a business under the name of the Eureka Express Company, and that he was in fact merely an agent for the parties who gave him orders for the beer or liquor. UPOf} the trial the jury was instructe4 that if the defEmdant held himself out to the public as beilJg one ready to procure for his customers liquor, malt or spirituous, less than fiv£lgallons, and if in fact he did as a business engage in ,the procuring in the way stated liquors for anyone who should apply to bim, it would justify the jury in finding the defendant guilty under the In support of the motion for new trial it is urged thnt by the useof the words "retail" and "wholesale" in the statute it is made necessary that t!> violate the s.tatute a person must sell the liquor in the sense that he himself must be the owner thereof, so that, when delivery is made, the title passes to the purchaser from the ona-actually delivering the property. By this of the statute it would be limited in application to caf)es wherein the party was engaged in selling liquor of which he was the owner. The statute does not impose a tax upon sales made, but upon a business of a certain character. If one is a retail 'dealer in liquors, he is liable to the tax. It is the dealing in liquors that constitutes the taxable business, and certainly one who engages in the business of procuring from the manufacturers beer by the case, and disposing of it by the bottle, is dealing in liquors. It can make no difference in this regard if it were true that the customers left their orders for specific quantities, before v.38F.no.9-47

788

FEDERALRE'PORTEB,

vol. 38.

the defendant 'undertook the procurement thereof. The section of the statute providing that liquor dealers must pay a certain tax to the United States is part of the laws devised for the raising a revenue for the government, and as such is not regarded as a penal statute, but is to be construed liberally in order to carry out the purpose of its enactment. U. S. v. HodBOn, 10 WalL 895. The word "dealer" is not confined to one who sells his own property only. If one opens out a place of business for the purpose offurnishing to all who may patronize him liquors. malt or spirituous, in quantities less than five gallons, he is engaged in the business of a retail liquor dealer, irrespective of the question of the manner or mode in which he acquires or procures the liquors from the manufacturers. The fact that :qe procures from the manufacturer or wholesaler the liquor in quantities, and disposes of the same for a profit to anyone who may call upon him,' certainly makes' him a dealer. If the evidence had fully sustained the ' claim of defendant-which it did not-that he never procured any liquor from the manufacturer until he had secured orders for the same from customers, it would bot change the rule, for it would still be true that, relying upon these orders for small quantities, he procured beer by the case from the mlUlufacturer, and delivered it to his customers, charging them a round profit -upon each bottle. But, aside from this questioli,the evidence clearly showed that in making the purchase of the liquor from the rhanufacturetiri Covington, Neb., the defendant was the actual purchaser thereof, and the title passed to him. The defendant paid for the beer by the case. When he received it from'the manufadturer, and paid the price therefor, the title passed frorn the manufacturer, and he no longer had any interest, title, oi'right therein. It is equally clear that the title to any single or half dozen bottles did not i then pass to anyone customer of defendant. '. A customer could n6t prove a title to any given bottle of the beer by showing that he had ordered one or more bottles from the defendant, and paid him a part of the priCfl. When upon the witness stand the defendant admitted that he could not name the owner or owners of any of the bottles of the beer that were in his place of business when it was seized by the stilte officers. He had a certain number of bottles then in his possession, which he had procured from the manufacturers, and paid for, and from which he expected to fill all orders left with him by his customers. That he was in fact a dealer in liquors, it seems to me, cannot be disguised by reflnementsupon one or two words used in the statute. His business was to procure from· the 'manufacturer liquor in quantities, and to dispose of it in lesser quantities to any one who would' patronize him, and, this being so, he was aliquor dealer within the true meaning of the statute. 'The motion fot new trial is therefore overruled.

Claim 1 oOetters patent granted December 26,1871, to Willlam Fawcett, which is for covered with leather or hard rubber up6il· the outer side,leaviuK the inside uncovered," is void for want of novelty.

In Hearing on bill and proofs. .Bill by William Fawcett against the Rubber & Celluloid Harness T.l:imming Company, for infringement of letters patent No. 122,163. bill waS filed in August, 1878, and the cause was at issue early in 1879. Some testimony had been taken, when, on October 8, 1879, it was stipulated that proceedings be suspended for three months from that date for the <;lonvenience of counsel. Nothing further was done until January, 1888, when complainant obtained an order appointing a special examiner to At the hearing it was objected that this delay of nearly nine years was a bar in equity to the consideration of the case; but the. point was not pressed, and, as neither party appears to have been eager to speed the cause, the court refused to sustain the objection. A. V. Briesen" for complainant. . J. O. OUiytfmand A. Z. Keasbey, for defendant.

WALEs, J ·. This isa suit in equity, brought to restrain the infringement by the 'defendant of letters patent No. 122,163, granted toWilliam Fawcett,thecQmplainant, December 26,1871, for improvement in aring harness-mountings. The specification set forth that the"Invention has for its object to furnish an improvement in covering harnessmountings,· simple in construction, convenient in application, inexpensive, and at the same time will give a neat and elegant appearance to the mountings; andit·consists in the covering applied to the mountings, as hereinafter more fully described. A represents a terret, the inner sJlrface of which is rounded off to receive the plating. The outer surface is also rounded off, and has a shoulder or recess formed in it near each edge, as shown iIi Figs. :& and 8. B is the covering, which may be made of leather or hard rubher. The covering, B,is moulded or otl1erwise formed, so as to fit upon the outer side of the mountings; the shoulders or recesses preventing it from slipping off. The ends of the covering are secured to the shank or neck of the mounting. For additional security, and to add to the appearance of the mounting, wires, C, may be passed over the covering, B, along the shoulders or recesses of the mountings, as. shown in Fig. 2, its ends being secured to the shank or neck of the mountings; or, if desired, the. wires, C, may be covered with or embedded in the covering, B, as shown in Figs. 4 and 5, so as to secure the said covering in place, and at the time be entirely out of sight. .This construction enables the covering to be applied to the mountings only upon the outer side, lea\'ing the inner side uncovered to receive the plating and the wear, thus avoiding facing the mountings with metal, and the attending trouble and expense." Only the first claim of the patent is in controversy, and is in these words: